IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA, ))

Plaintiff, ))

v. ))

CALVIN JACOBS, ))

Defendant. )

8: 11CR34

FINALJURY INSTRUCTIONS

)

INSTRUCTION NO. 1

DUTY

It is your duty to decide from the evidence whether the defendant is guilty or not

guilty of the crimes charged. From the evidence, you will decide what the facts are. You

are entitled to consider the evidence in the light of your own observations and

experiences in life. You may use reason and common sense to draw deductions or

conclusions from facts established by the evidence. You will then apply those facts to

the law which I give you in these and other instructions. In that way, you will reach your

verdict. You are the sole judges of the facts, but you must follow the law stated in my

instructions whether you agree or disagree with the law stated in the instructions.

In deciding what the facts are, you may have to decide what testimony you

believe and what testimony you do not believe. You may believe all of a witness’s

testimony, or you may believe part of a witness’s testimony, or you may decide that you

do not believe any of a witness’s testimony.

In deciding what testimony to believe, you may consider a witness’s intelligence,

the witness’s opportunity to have seen or heard the things involved in the witness’s

testimony, a witness’s memory, the motive a witness has for testifying a certain way, a

witness’s manner while testifying, whether a witness has said something different at an

earlier time, the general reasonableness of a witness’s testimony and the extent to

which the witness’s testimony is consistent with other evidence that you believe.

Do not allow sympathy or prejudice to influence you. The law requires that your

verdict be just, that is, unaffected by anything except the evidence, your common sense,

and the law stated in my instructions.

Anything that I may say or do during the trial must not be taken by you as an

indication of what I think of the evidence or what I think your verdict should be.

Finally, please remember that only the defendant, and not anyone else, is on trial

here, and the defendant is on trial only for the crime or crimes charged, and not for

anything else.

INSTRUCTION NO. 2

PRESUMPTION OF INNOCENCE

The law presumes that the defendant is innocent. The defendant has no burden

to prove that he is innocent. Hence, even though the defendant stands charged, the

trial begins with no evidence against him.

INSTRUCTION NO. 3

CONSTITUTIONAL RIGHT NOT TO TESTIFY

Because a defendant is not required to prove his or her innocence, a defendant’s

decision to exercise his or her constitutional right not to testify cannot be considered by

you or discussed among jurors in arriving at your verdict.

INSTRUCTION NO. 4

BURDEN OF PROOF

The government carries the burden to prove beyond a reasonable doubt each

essential element of the crimes charged against the defendant. A reasonable doubt is a

doubt based upon reason and common sense, and not the mere possibility of

innocence. A reasonable doubt is the kind of doubt that would make a reasonable

person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of

such a convincing character that a reasonable person would not hesitate to rely and act

upon it. However, proof beyond a reasonable doubt does not mean proof beyond all

possible doubt.

INSTRUCTION NO. 5

EVIDENCE; LIMITATIONS

You should understand that an indictment is simply an accusation. It is not

evidence of anything. The defendant has pled not guilty. The defendant is presumed to

be innocent unless proved guilty beyond a reasonable doubt.

The word “evidence” includes: the testimony of witnesses; documents and other

things received as exhibits; any facts that have been stipulated, that is, formally agreed

to by the parties; and any facts that have been judicially noticed, that is, facts which I say

you must accept as true.

The following things are not evidence:

1. Statements, arguments, questions and comments by lawyers are not evidence.

2. Objections are not evidence.

Lawyers have a right to object when they believe something is improper under the

rules of evidence. You should not be influenced by the lawyer’s objection or by my

ruling on the objection. If I sustain an objection to a question, ignore the question. If I

overrule the objection, treat the answer like any other answer. Do not attempt to draw

any inference in favor of either side as the result of the objection.

3. Testimony that I strike from the record or tell you to disregard is not evidence.

You must not consider such information when reaching your verdict.

4. Anything you see or hear about this case outside the courtroom is not

evidence. You must disregard such information when reaching your verdict.

5. A particular item of evidence is sometimes received for a limited purpose. I

will tell you when that situation arises and will instruct you on the purpose for which the

evidence can and cannot be used.

6. Finally, you may have heard the phrases “direct evidence” and “circumstantial

evidence.” You should not be concerned with those phrases, since the law makes no

distinction between the weight to be given to direct or to circumstantial evidence. You

should give all the evidence the weight and value which you believe that the evidence is

entitled to receive.

INSTRUCTION NO. 6

BENCH CONFERENCES AND RECESSES

During this trial it may become necessary for me to talk with the lawyers outside

your hearing, either by having a bench conference while you are present in the

courtroom, or by calling a recess. Please understand that while you are waiting, we are

working. The purpose of the conference is to decide how certain evidence is to be

treated under the rules of evidence or to decide a particular procedure to be followed in

the case. We will do what we can to minimize the number and length of these

conferences.

INSTRUCTION NO. 7

NOTE-TAKING

If you wish, you may take notes to help you remember what witnesses said.

Notes may be helpful to you because at the end of the trial, you must make your

decision based on what you recall of the evidence. You will not have a written transcript

to consult, and it may not be practical for the court reporter to read back lengthy

testimony. Therefore, pay close attention to the testimony that is given.

If you do take notes, please keep your notes to yourself until you and the other

jurors go to the jury room to decide the case. Do not let note-taking distract you to the

point that you miss hearing other testimony from the witness.

During the trial, documents and other physical items may be received in

evidence. You will not be supplied with a list of exhibits which are received in evidence.

Therefore, you may wish to make notes about the exhibits, especially their description

and number, so that you can locate and refer to exhibits while you are deliberating.

When we take our recess each day for the lunch-time break and when we take

our recess each night, please take your notes to the jury room and leave your notes

there. The courtroom deputy will take custody of your notes and secure them.

No one will read your notes but you. Your notes will be destroyed after the trial is

over.

INSTRUCTION NO. 8

CONDUCT OF THE JURY

To insure fairness, you, as jurors, must obey the following rules:

1. Do not talk among yourselves about this case or about anyone involved with

this case until the end of the case when you go to the jury room to decide on your

verdict.

2. Do not talk with anyone else about this case or about anyone involved with it

until the trial has ended and you have been discharged as jurors.

3. During the course of this trial and when you are outside the courtroom, do not

listen to or allow anyone to tell you anything about this case. Do not allow anyone to talk

to you about anyone involved with this case until the trial has ended and I have accepted

your verdict. If anyone tries to talk to you about this case during the trial, please

promptly report the matter to me.

4. During the trial do not talk with or speak to any of the parties, lawyers, or

witnesses involved in this case. Do not even pass the time of day with any of them. You

must not only do justice in this case, but you must also give the appearance of doing

justice. For instance, if a person from one side of the lawsuit sees you talking to a

person from the other side, even if it is on a matter unconnected with this trial or simply

to pass the time of day, such contact might arouse unwarranted suspicion about your

fairness. If a lawyer, party, or witness does not speak to you when you pass in the hall,

ride the elevator, or encounter each other elsewhere while this trial is taking place,

remember that court rules prohibit those persons from talking or visiting with you as well.

5. You must decide this case on the basis of evidence presented in the

courtroom. Therefore, do not read any news stories or articles about the case or

about anyone

involved with this case. Do not listen to any radio or television reports about the case or

about anyone involved with it. Until the trial is over, avoid reading any newspapers and

avoid listening to any TV or radio newscasts. There may be news reports of this case,

and if there are, you might find yourself inadvertently reading or listening to something

before you realize what you are doing.

6. Do not do any research or make any investigation on your own concerning

this case. Do not use or refer to any dictionary, reference, or law book, or the Internet,

concerning any aspect of this case, including any evidence introduced. Do not visit the

scene of any incident mentioned in this case.

7. Do not form any opinion regarding any fact or issue in the case until you have

received the entire evidence, have heard arguments of counsel, have been instructed as

to the law of the case, and have retired to the jury room. Do not make up your mind

during the trial about what the verdict should be. Keep an open mind until after you

have gone to the jury room to decide the case and have discussed the evidence with the

other jurors.

8. Do not be influenced by sympathy or prejudice. Do not indulge in any

speculation, guess, or conjecture. Do not make any inferences unless they are

supported by the evidence.

INSTRUCTION NO. 9

OUTSIDE COMMUNICATIONS AND RESEARCH

You, as jurors, must decide this case based solely on the evidence presented

here within the four walls of this courtroom because the parties must have an

opportunity to respond to any information you consider in deciding this case. This

means that during the trial you must not conduct any independent research about this

case, the matters in the case, and the individuals or corporations involved in the case.

In other words, you should not consult dictionaries or reference materials, search the

Internet, Web sites, blogs, chat rooms, social networking Web sites including Facebook,

My Space, LinkedIn or YouTube, or use your cell phones, iPhones, text messaging,

Twitter or any other electronic tools or devices to obtain information about this case or to

help you decide the case.

Until you retire to deliberate, you may not discuss this case with anyone, even

your fellow jurors. After you retire to deliberate, you may begin discussing the case with

your fellow jurors, but you cannot discuss the case with anyone else until you have

returned a verdict and the case is at an end. I hope that for all of you this case is

interesting and noteworthy. However, until you have returned a verdict and the case is

at an end, you must not talk to anyone or communicate with anyone about the case

by any means, electronic or otherwise. This includes communications with your family

and friends. Such communication would compromise your fairness as jurors and may

require your removal from the case and a retrial of this matter at considerable expense

to the parties.

INSTRUCTION NO. 10

OUTLINE OF TRIAL

The trial will proceed in the following manner:

The government, through the Assistant United States Attorney, will make an

opening statement. The defendant may, but does not have to, make an opening

statement. An opening statement is not evidence but is simply a summary of what the

attorney expects the evidence to be.

The government will then present its evidence, and the defendant may cross-

examine witnesses who have testified in the government’s case. After the government

has presented its case, the defendant may, but does not have to, present evidence,

testify, or call witnesses. If a defendant calls witnesses, government counsel may

cross-examine those witnesses.

After presentation of evidence is completed, the attorneys will make their closing

arguments to summarize and interpret the evidence for you. As with opening

statements, closing arguments are not evidence. I will instruct you further on the law.

After that you will retire to deliberate on your verdict.

When you reach your verdict, we will return to the courtroom where your

foreperson will deliver the verdict to me. After the verdict is announced, one of the

lawyers may ask that the jury be polled, that is, that you each be asked individually

whether the verdict is your true verdict.

Once you have delivered your verdict, you will be discharged and will be free to

leave.

INSTRUCTION NO. 11

NATURE OF THE CASE; NATURE OF INDICTMENT

This is a criminal case brought by the United States of America against the

defendant, Calvin Jacobs, Case No. 8:11CR34. The parties to this criminal lawsuit are

the government, represented by Mr. Douglas Semisch, and the defendant, Calvin

Jacobs, represented by counsel, Mr. Steven J. Lefler. The charges against the

defendant are set forth in an indictment. You must understand that the indictment is

simply an accusation. The indictment is not evidence. In order to help you follow the

evidence in this case, I will now summarize the crimes charged in the indictment which

the government must prove beyond a reasonable doubt.

Generally, Counts I through VI of the indictment charge that Mr. Calvin Jacobs

devised and intended to devise a scheme and artifice to defraud Vital Signs Unlimited,

Inc., and to obtain money by means of materially false and fraudulent pretenses,

representations and promises. The indictment charges that Mr. Jacobs used interstate

wire communications in furtherance of the fraud on six separate occasions, in violation

of

18 U.S.C. § 1343. Each wire communication made to carry out the scheme to defraud

is a separate offense.

In Count I, the government charges that on or about July 25, 2006, in furtherance

of a scheme to defraud, the defendant transferred $10,292.03 from an account at Tier

One Bank to an account at Chase Bank.

In Count II, the government charges that on or about September 14, 2007, in

furtherance of a scheme to defraud, the defendant transferred $25,000.00 from an

account at Tier One Bank to an account at Chase Bank.

In Count III, the government charges that on or about April 2, 2008, in

furtherance of a scheme to defraud, the defendant transferred $25,000 from an account

at Tier One Bank to an account at Chase Bank.

In Count IV, the government charges that on or about May 29, 2008, in

furtherance of a scheme to defraud, the defendant transferred $25,000.00 from an

account at Tier One Bank to an account at Chase Bank.

In Count V, the government charges that on or about August 27, 2008, in

furtherance of a scheme to defraud, the defendant transferred $30,026.65 from an

account at Tier One Bank to an account at Chase Bank.

In Count VI, the government charges that on or about February 3, 2009, in

furtherance of a scheme to defraud, the defendant transferred $20,000.00 from an

account at Tier One Bank to an account at Chase Bank.

The defendant has pled not guilty to the charges of the indictment. Because he

has pled not guilty, the law requires you to presume Mr. Jacobs to be innocent. This

presumption of innocence may be overcome only if the government proves, beyond a

reasonable doubt, each element of the crimes charged against the defendant.

INSTRUCTION NO. 12A

COUNTS I - VI: WIRE FRAUD

ELEMENTS OF OFFENSE

To obtain a conviction on a charge of wire fraud, the government must prove the

following elements beyond a reasonable doubt, with respect to each count:

1. The defendant voluntarily and intentionally devised or made up a scheme to

defraud another out of money, or to obtain money or property, by means of

material false representations, or writing checks to false accounts or to CTKA, a

corporation he created, or by transmitting funds from the business account of VS,

by wire, to his own personal credit card account at a different financial institution

in Palatine, Illinois, for purposes unrelated to the business of VS, and for his own

personal use.

2. The defendant did so with the intent to defraud;

3. In furtherance of the scheme, the defendant caused interstate wire

communications to take place in the manner charged in the particular count; and

4. Under the wire fraud statute, each separate use of interstate wire facilities in

furtherance of the scheme to defraud constitutes a separate offense.

Accordingly, as to the charges contained in Counts I through VI of the indictment,

the first three essential elements are exactly the same. However, the fourth

element of each count is different in that a different alleged interstate wire

communication must be proven beyond a reasonable doubt as follows:

COUNT I : On or about July 25, 2006, a wire transfer of $10,292.03

sent from account number XXXXXX953 at Tier One Bank to account

number XXXXXXXXXXXX1274 at Chase Bank.

COUNT I I : On or about September 14, 2007, a wire transfer of

$25,000.00 sent from account number XXXXXX953 at Tier One Bank to

account number XXXXXXXXXXXX1274 at Chase Bank.

COUNT II I : On or about April 2, 2008, a wire transfer of $25,000.00

sent from account number XXXXXX953 at Tier One Bank to account

number XXXXXXXXXXXX1274 at Chase Bank.

COUNT I V : On or about May 29, 2008, a wire transfer of

$25,000.00 sent from account number XXXXXX953 at Tier One Bank to

account number XXXXXXXXXXXX1274 at Chase Bank.

C O UNT V : On or about August 27, 2008, a wire transfer of

$30,026.65 sent from account number XXXXXX953 at Tier One Bank to

account number XXXXXXXXXXXX1274 at Chase Bank.

C O UNT V I : On or about February 3, 2009, a wire transfer of

$20,000.00 sent from account number XXXXXX953 at Tier One Bank to

account number XXXXXXXXXXXX1274 at Chase Bank.

If you find the government has proved all of these elements beyond a reasonable

doubt as to each count, then you must find the defendant guilty of the crime charged in

that count. If you find the government has not proved all of these elements beyond a

reasonable doubt as to each count, you must find the defendant not guilty of this crime.

INSTRUCTION NO. 13A

DEFINITIONS OR TERMS EXPLAINED

The phrase “scheme to defraud” includes any plan or course of action intended to

deceive or cheat another out of money by employing material falsehoods or concealing

or omitting material facts. It also means the obtaining of money from another by means

of material false representations or promises. A scheme to defraud need not be

fraudulent on its face but must include some sort of fraudulent misrepresentation or

promise reasonably calculated to deceive a reasonable person.

A representation or promise is “material” if it has a natural tendency to influence,

or is capable of influencing, the decision of a reasonable person in deciding whether

to engage or not to engage in a particular transaction.

To act with “intent to defraud” means to act knowingly and with the intent to

deceive someone for the purpose of causing some financial loss to another or bringing

about some financial gain to oneself or another to the detriment of a third party.

The phrase “interstate commerce” means commerce between any combination of

states, territories, and possessions of the United States, including the District of

Columbia. The term “commerce” includes, among other things, travel, trade,

transportation and communication.

It is not necessary that the government prove all of the details alleged concerning

the precise nature and purpose of the scheme or that the wire communication was itself

false or fraudulent.

The phrase “used wire communications in interstate commerce” means to send

from one state to another by means of a wire communication and includes the

electronic

transfer of funds from an account in one state to an account in another state. It is not

necessary for the government to prove that the information transmitted by means of wire

communication in interstate commerce itself was false or fraudulent. However, the

government must prove beyond a reasonable doubt that the use of the wire

communication in interstate commerce furthered, or advanced, or carried out, in some

way, the scheme to defraud or the scheme to obtain money or property by means of

false or fraudulent pretenses or representations.

Each separate use of the interstate wire communications as part of the scheme to

defraud is a separate crime.

INSTRUCTION NO. 14

CONSIDER EACH COUNT SEPARATELY

Keep in mind that you must give separate consideration to the evidence about

each charge of the indictment. Each count should be considered separately, and you

must return a separate verdict for each count.

The fact that you find the defendant guilty or not guilty of one of the offenses

charged should not control your verdict as to any other offense charged against the

defendant.

INSTRUCTION NO. 15

“ON OR ABOUT” EXPLAINED

The indictment charges that the offenses were committed “on or about” a certain

date or period of time. It is not necessary that the proof establish with certainty the exact

date of the alleged offenses. It is sufficient if the evidence shows beyond a reasonable

doubt that said offenses were committed on a date reasonably near the date alleged.

INSTRUCTION NO. 16

INTRODUCTION

Members of the jury, the instructions I gave you at the beginning of the trial and

during the trial remain in effect. I now give you some additional instructions. You must

continue to follow the instructions I gave you earlier as well as those I give you now. Do

not single out some instructions and ignore others. I urge you to review the instructions

I gave you at the beginning of the trial before you begin to deliberate. You should take

your notebooks to the jury room with you.

INSTRUCTION NO. 17

REASONABLE DOUBT

The law presumes a defendant to be innocent of a crime. Thus a defendant,

although accused, begins the trial with a “clean slate”—with no evidence against him.

And the law permits nothing but legal evidence presented before the jury to be

considered in support of any charge against the accused. So the presumption of

innocence alone is sufficient to acquit a defendant, unless the jurors are satisfied

beyond a reasonable doubt of the defendant’s guilt after careful and impartial

consideration of all the evidence in the case. It is not required that the government

prove guilt beyond all possible doubt.

The test is one of reasonable doubt. A reasonable doubt is a doubt based upon

reason and common sense—the kind of doubt that would make a reasonable person

hesitate to act in the most important of his or her affairs. Proof beyond a reasonable

doubt must, therefore, be proof of such a convincing character that a reasonable person

would not hesitate to rely and act upon it in the most important of his or her own affairs.

A defendant is never to be convicted on mere suspicion or conjecture. The

burden is always on the prosecution to prove guilt beyond a reasonable doubt. This

burden never shifts to the defendant, for the law never imposes upon a defendant in a

criminal case the burden or duty of calling any witnesses or producing any evidence.

So, if the jury, after careful and impartial consideration of all the evidence in the

case, has a reasonable doubt that a defendant is guilty of a charge, it must acquit. If the

jury views the evidence in the case as reasonably permitting either of two conclusions—

one that the defendant is guilty and the other that the defendant is not guilty—the

jury must, of course, adopt the conclusion that the defendant is not guilty.

INSTRUCTION NO. 18

REASONABLE INFERENCES

While you should consider only the evidence in the case, you are permitted to

draw reasonable inferences from the testimony and exhibits that you feel are justified in

the light of common experience. In other words, you may make deductions and reach

conclusions which reason and common sense lead you to draw from the facts which

have been established by the testimony and evidence in the case.

INSTRUCTION NO. 19

CREDIBILITY OF WITNESSES

In deciding what the facts are, you may have to decide what testimony you

believe and what testimony you do not believe. You may believe all of what a witness

said, or only part of it, or none of it.

In deciding what testimony to believe, consider the witness’s intelligence, the

opportunity the witness had to have seen or heard the things testified about, the

witness’s memory, any motives that witness may have for testifying a certain way, the

manner of the witness while testifying, whether that witness said something different at

an earlier time, the general reasonableness of the testimony, and the extent to which

the testimony is consistent with any evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people

sometimes hear or see things differently and sometimes forget things. You need to

consider therefore whether a contradiction is an innocent misrecollection or lapse of

memory or an intentional falsehood, and that may depend on whether it has to do with

an important fact or only a small detail.

INSTRUCTION NO. 20

OPINION EVIDENCE - EXPERT WITNESS

Persons who, by knowledge, skill, training, education or experience, have

become expert in some field may state their opinions on matters in that field and may

also state the reasons for their opinion. Expert testimony should be considered just like

any other testimony. You may accept or reject it, and give it as much weight as you

think it deserves, considering the witness’s education and experience, the soundness of

the reasons given for the opinion, the acceptability of the methods used, and all the

other evidence in the case.

INSTRUCTION NO. 21

SUMMARIES

You will remember that certain summaries were admitted in evidence. You may

use those summaries as evidence, even though the underlying documents and records

are not here. It is for you to decide how much weight, if any, you will give to them. In

making that decision, you should consider all of the testimony you heard about the way

in which they were prepared.

INSTRUCTION NO. 22

NOTES

Some of you may have taken notes during the trial; others of you may have

chosen not to take notes. If you did take notes, remember that those notes are not

themselves evidence, but are instead merely memory aids. You must reach a verdict

based upon your independent recollection of the evidence presented during the trial, not

upon your notes or another juror’s notes. Notes are not entitled to any greater weight

than the recollection or impression of each juror as to what the testimony may have

been.

INSTRUCTION NO. 23

ELECTION OF FOREPERSON; DUTY TO DELIBERATE

In conducting your deliberations and returning your verdict, there are certain rules

you must follow. I shall list those rules for you now.

First, when you go to the jury room, you must select one of your members as your

foreperson. That person will preside over your discussions and speak for you here in

court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury

room. You should try to reach agreement because a verdict—whether guilty or not guilty

— must be unanimous. Each of you must make your own conscientious decision, but

only after you have considered all the evidence, discussed it fully with your fellow jurors,

and listened to the views of your fellow jurors. Do not be afraid to change your opinions

if the discussion persuades you that you should. But do not come to a decision simply

because other jurors think it is right, or simply to reach a verdict.

Third, if a defendant is found guilty, the sentence to be imposed is my

responsibility. You may not consider punishment in any way in deciding whether the

government has proved its case beyond a reasonable doubt.

Fourth, if you need to communicate with me during your deliberations, you may

send a note to me through the U.S. Marshal or the courtroom deputy, signed by one or

more jurors. I will respond as soon as possible either in writing or orally in open court.

Remember that you should not tell anyone—including me—how your votes stand

numerically.

Fifth, your verdict must be based solely on the evidence and on the law which I

have given to you in my instructions. The verdict, whether guilty or not guilty, must be

unanimous. Nothing I have said or done is intended to suggest what your verdict should

be—that is entirely for you to decide.

Finally, the verdict form is simply the written notice of the decision that you reach

in this case. You will take the verdict form to the jury room, and when each of you has

agreed on a verdict for the defendant, your foreperson will fill in the form, sign and date

it, and advise the marshal or courtroom deputy that you are ready to return to the

courtroom.